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United States v. Flores

United States District Court, E.D. Kentucky, Central Division, Lexington

November 16, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
EDGAR LERMA FLORES, Defendant/Movant.



         Defendant Edgar Lerma Flores pleaded guilty on October 7, 2');">2');">2');">2');">2');">2');">2');">2015, to conspiring to distribute five kilograms or more of cocaine and conspiring to distribute 500 grams or more of methamphetamine, in violation of 2');">2');">2');">2');">2');">2');">2');">21 U.S.C. §§ 841(a)(1) and 846. [Record Nos. 82');">2');">2');">2');">2');">2');">2');">2, 12');">2');">2');">2');">2');">2');">2');">24] Flores was sentenced to 300 months' imprisonment on each count, to run concurrently, to be followed by a total term of five years of supervised release. [Record No. 134] Flores's sentence was affirmed on appeal. United States v. Romero, 704 Fed.Appx. 445, 446-49 (6th Cir. 2');">2');">2');">2');">2');">2');">2');">2017). Flores has now filed a pro se motion under 2');">2');">2');">2');">2');">2');">2');">28 U.S.C. § 2');">2');">2');">2');">2');">2');">2');">22');">2');">2');">2');">2');">2');">2');">255, alleging ineffective assistance of counsel at the re-arraignment, sentencing, and during appellate phrases of his prosecution. [Record No. 2');">2');">2');">2');">2');">2');">2');">209');">2');">2');">2');">2');">2');">2');">2');">209]


         Flores originally retained attorney Dan Carman in May 2');">2');">2');">2');">2');">2');">2');">2015. [See Record Nos. 6, 177.] He argues that Carmen's performance was deficient because he failed to secure a “lenient” plea agreement under Rule 11(c)(1)(B) or (c)(1)(C) of the Federal Rules of Criminal Procedure. Flores also contends that Carman assured him that if he followed his instructions and responded to the Court with “yes, Your Honor, ” he would be sentenced to no more than ten years' imprisonment. [Record No. 2');">2');">2');">2');">2');">2');">2');">209');">2');">2');">2');">2');">2');">2');">2');">209-1, p. 3-4]

         Following the entry of his guilty plea, Flores also retained attorney Joseph Lopez to act as co-counsel to Carman during sentencing. [Record No. 86] Flores alleges that Carman and Lopez provided deficient representation during the sentencing phase of the proceedings because they lacked knowledge regarding the applicable United States Sentencing Guidelines and continued to promise him that he would receive a sentence of no more than ten years. Flores also contends that Carman and Lopez failed to present evidence regarding mitigating factors during sentencing and that they improperly failed to object to the drug quantity attributed to him and failed to object to his criminal history calculation. [Record No. 2');">2');">2');">2');">2');">2');">2');">209');">2');">2');">2');">2');">2');">2');">2');">209, p. 6');">p. 6] Next, Flores asserts that he did not have a sufficient opportunity to review his Presentence Investigation Report (“PSR”) with his attorneys. [Record No. 2');">2');">2');">2');">2');">2');">2');">209');">2');">2');">2');">2');">2');">2');">2');">209-2');">2');">2');">2');">2');">2');">2');">2, p. 9]

         Mark Wettle was appointed under the Criminal Justice Act to represent Flores during his appeal. [Record No. 180] Flores argues that Wettle provided ineffective assistance during the appeal process because he failed to assert a litany of issues that Flores asked him to raise. [Record Nos. 2');">2');">2');">2');">2');">2');">2');">209');">2');">2');">2');">2');">2');">2');">2');">209-1, p. 2');">2');">2');">2');">2');">2');">2');">2; 2');">2');">2');">2');">2');">2');">2');">209');">2');">2');">2');">2');">2');">2');">2');">209-2');">2');">2');">2');">2');">2');">2');">2, pp. 13-14] Flores also asserts that Wettle's representation was ineffective per se because he failed to file a petition for a writ of certiorari, as Flores requested.


         Flores challenges are governed by the well-known “performance” and “prejudice” standard established in Strickland v. Washington, 466 U.S. 668 (1984), because he claims he was denied the effective assistance of counsel guaranteed by the Sixth Amendment. To establish that counsel's assistance was constitutionally ineffective, a petitioner must show that his “counsel's representation fell below an objective standard of reasonableness” and “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 688, 694. “In reviewing a § 2');">2');">2');">2');">2');">2');">2');">22');">2');">2');">2');">2');">2');">2');">255 motion in which a factual dispute arises, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims” unless the record conclusively shows that the petitioner is not entitled to relief. Valentine v. United States, 3d 32');">2');">2');">2');">2');">2');">2');">25');">488 F.3d 32');">2');">2');">2');">2');">2');">2');">25, 333 (6th Cir. 2');">2');">2');">2');">2');">2');">2');">2007). See also 2');">2');">2');">2');">2');">2');">2');">28 U.S.C. § 2');">2');">2');">2');">2');">2');">2');">22');">2');">2');">2');">2');">2');">2');">255(b). The Court has reviewed Flores's claims and finds that the record conclusively shows that he is not entitled to relief on most of his claims. However, a limited evidentiary hearing will be required to resolve Flores's claim that attorney Carman told him to “just say yes” to the Court's inquiries to obtain a favorable sentence.



         Flores's assertions that Carman performed deficiently by failing to secure a “favorable contractual plea agreement” are without merit. Flores was charged with two counts of conspiring to distribute controlled substances and two counts of possession with intent to distribute controlled substances. Each charge carried a mandatory statutory minimum of ten years' imprisonment and a maximum of life. Attorney Carman negotiated with the United States a plea agreement in which Flores conceded guilt on the two conspiracy charges and the remaining counts were dismissed. And due to his timely entry of a guilty plea, Flores received a three-level reduction to his base offense level for acceptance of responsibility.

         To the extent Flores argues that counsel should have obtained a more favorable plea agreement, there is no suggestion that the government was willing to agree to any other terms. And under the facts presented, the undersigned would not have accepted a binding plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Courts generally do not accept plea agreements under Rule 11(c)(1)(C) unless “the agreed sentence is within the applicable guideline range. . . .” U.S.S.G. § 6B1.2');">2');">2');">2');">2');">2');">2');">2(c). Flores's guidelines range was 2');">2');">2');">2');">2');">2');">2');">235-2');">2');">2');">2');">2');">2');">2');">293 months-well in excess of the 12');">2');">2');">2');">2');">2');">2');">20 month (maximum) sentence he argues counsel should have obtained. For these reasons, counsel's failure to obtain a more favorable plea agreement does not constitute ineffective assistance and the defendant was not prejudiced by counsel's failure to do so.

         Flores also contends that Carman constantly guaranteed him that if he followed Carman's instructions and responded to the Court with “yes, Your Honor, ” he would be sentenced to no more than ten years in prison. [Record Nos. 2');">2');">2');">2');">2');">2');">2');">209');">2');">2');">2');">2');">2');">2');">2');">209-1, pp. 3-4; 2');">2');">2');">2');">2');">2');">2');">209');">2');">2');">2');">2');">2');">2');">2');">209-3, p. 2');">2');">2');">2');">2');">2');">2');">2] Flores alleges that he tried to relay these promises to the Court, but he was unable to do so. Id. He also states that, while he “clearly accepted responsibility [for] the cocaine, ” he “doubted existence of the methamphetamine during plea colloquy and sentencing.” [Record No. 2');">2');">2');">2');">2');">2');">2');">209');">2');">2');">2');">2');">2');">2');">2');">209-2');">2');">2');">2');">2');">2');">2');">2, p. 6');">p. 6]

         Although Flores does not say so explicitly, he suggests that he relied on Carman's promises of a “lenient sentence” in deciding to plead guilty. A guilty plea is valid if it was entered into both voluntarily and intelligently, as determined under the totality of circumstances leading up to the plea. Bousley v. United States, 2');">2');">2');">2');">2');">2');">2');">23 U.S. 614');">52');">2');">2');">2');">2');">2');">2');">23 U.S. 614, 618 (1998); Boykin v. Alabama, 395 U.S. 2');">2');">2');">2');">2');">2');">2');">238');">395 U.S. 2');">2');">2');">2');">2');">2');">2');">238, 2');">2');">2');">2');">2');">2');">2');">242');">2');">2');">2');">2');">2');">2');">2-44 (196');">969). Courts must be able to rely on a defendant's statements made during a plea colloquy, and “dispositions by guilty pleas are accorded a great deal of finality.” Blackledge v. Allison, 431 U.S. 63, 71 (1977). Where the district court has scrupulously followed the procedure required for accepting the defendant's guilty plea, the defendant ordinarily is bound by his statements in response to the court's inquiry. Baker v. United States, 1 F.2');">2');">2');">2');">2');">2');">2');">2d 85');">781 F.2');">2');">2');">2');">2');">2');">2');">2d 85, 90 (6th Cir. 1986).

         Here, the Court began by reminding Flores that he had been placed under oath and that his answers must be truthful. [Record No. 96');">96, p. 4');">p. 4] Flores acknowledged understanding that he could be prosecuted for failing to give truthful answers during the proceeding. He advised the Court that he was twenty-eight years old and had attended school through the third year of middle school in Mexico. He was able to read and write in Spanish, was not under the influence of any drugs or alcohol, and had never had (or been diagnosed with having) any type of mental health issues. Id. at 5-6. Attorney Carman reported that he had not had any problems communicating with Flores using an interpreter, and that he believed Flores understood the nature of the charges. Id. at 6-7.

         Flores acknowledged that he had received a copy of the indictment. Id. at 7. And when asked whether he had discussed the charges and the case in general with Carman, Flores responded: ‚Äúpart of the discovery is that sort of things. I ...

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